COMPETITOR INTELLIGENCE

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Seyfarth Synopsis: As cities across the nation adopt “ban the box” legislation that regulates private employers’ ability to inquire into applicants’ and employees’ criminal histories, employers face a nuanced gauntlet of compliance issues. This post briefly reviews recent developments in New York City, Philadelphia, Austin, and San Francisco.

Since 2000, we have seen a growing movement to adopt so-called “ban the box” legislation, which is shorthand for laws requiring that employers remove from their employment applications checkboxes or questions that ask if an applicant has a criminal record. In 2012, the Equal Employment Opportunity Commission endorsed removing checkboxes or questions regarding criminal convictions from job applications through its Criminal History Guidance. The President of the United States also endorsed the “ban the box” movement and directed federal agencies to delay inquiries into criminal records.

Presently, eight states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and most recently Vermont—have adopted “ban the box” laws that apply to private employers and have imposed a variety of nuanced requirements targeted at removing the conviction history question on job applications as well as placing other limitations on such inquiries. An additional group of sixteen states have “ban the box” laws aimed at the public sector.

Spreading Through Cities and Municipalities

In addition to state-level legislation, certain cities have enacted ban the box ordinances. To date, the District of Columbia and 26 cities and counties have adopted some form of “ban the box” legislation. For example, New York City (see our earlier post here), Philadelphia (here), San Francisco (here), and most recently, Austin, Texas (here), have adopted “ban the box” ordinances, each with a host of nuanced requirements. Below are common compliance questions that employers will encounter under each law.

Who is a Covered Employer?

While each ordinance covers private employers, each ordinance establishes a different employee threshold for coverage. For example, Austin’s ordinance applies to private employees with at least 15 employees whose primary work location is within the city for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Philadelphia’s ordinance, in contrast, applies to all private employers with at least one employee in the city. The New York City ordinance applies to all private employers with at least four employees, while the San Francisco ordinance applies to private employers with 20 or more employees, regardless of location.

What Can be Asked on Job Applications?

Generally, each ordinance contains restrictions that apply to job postings and employment applications. New York City, for example, prohibits “any limitation or specification regarding criminal history” in a job advertisement, application, or at any other stage in the hiring process prior to a conditional offer of employment. Similarly, employers in Philadelphia are prohibited from making “any inquiry” regarding an applicant’s criminal convictions, and Austin employers cannot “solicit” criminal history information, until after a conditional offer is made.

San Francisco, by contrast, requires that all job advertisements explicitly state that qualified applicants with arrest and conviction records will be considered for the position in accordance with the Fair Chance Ordinance, but prohibits employers from asking about arrest or conviction records on a job application.

Philadelphia and San Francisco also require employers to post conspicuous notices regarding a job applicant’s rights.

When Can You Inquire About A Job Applicant’s Criminal History?

Although employers are not prohibited from inquiring into criminal history, each ordinance is designed to defer the timing of the inquiry into one of the latter stages of the employment process. For example, San Francisco employers must wait to inquire about criminal history until after either they have conducted a live interview with the applicant, or made a conditional offer of employment. On the other hand, the Austin, New York City, Philadelphia ordinances (and others) permit an employer to ask about an applicant’s criminal history only after extending the conditional offer.

What Is The Minimum Individualized Assessment For Job Applicants?

Generally, employers are prohibited from taking adverse action against job applicants because of criminal history without first conducting an “individualized assessment.” Each ordinance establishes the minimum number of factors that employers are to consider as part of the individualized assessment. However, each ordinance varies in its approach.

The minimum “individualized assessment” under each ordinance consists of:

Austin

Employers must consider: (1) the nature and gravity of any offenses in the individual’s criminal history; (2) the length of time since the offense and completion of the sentence; and (3) the nature and duties of the job for which the individual has applied.

New York City

Employers must consider the factors found under New York Corrections Law, Article 23-A. Namely: (1) that New York public policy encourages the licensure and employment of people with criminal records; (2) the specific duties and responsibilities of the prospective job; (3) the bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities; (4) the time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction; (5) the age of the applicant when the events that led to her or his conviction occurred, not the time since arrest or conviction; (6) the seriousness of the applicant’s conviction history; (7) any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct; (8) the legitimate interest of the employer in protecting property and the safety and (9) welfare of specific individuals or the general public.

Employers must also consider a certificate of relief from disabilities or a certificate of good conduct, both of which shall create a presumption of rehabilitation. Employers must also memorize their analysis on a required Fair Chance Act Notice.

Philadelphia

Employers must consider: (1) the nature of the offense; (2) the time that has passed since the offense; (3) the applicant’s employment history before and after the offense and any period of incarceration; (4) the particular duties of the job being sought; (5) any character or employment references provided by the applicant; and (6) any evidence of the applicant’s rehabilitation since the conviction.

San Francisco

Employers must consider: (1) only directly-related convictions, (2) the time that has elapsed since the conviction or unresolved arrest, and (3) any evidence of inaccuracy or evidence of rehabilitation or other mitigating factors.

What Notice is Required Prior To An Adverse Action?

Each ordinance regulates the how an employer must inform a job applicant of adverse action based on their criminal background check, above and beyond any notice required under the Fair Credit Reporting Act or other applicable laws. Under each ordinance, an employer is required to provide applicants with at least written notice and a copy of the obtained background check. The New York City ordinance is particularly nuanced, however, and requires that employers also provide a copy of Article 23-A of the New York Corrections Law; a copy of the consumer report; and a copy of the employer’s analysis on a Fair Chance Act Notice.

In addition to written notices, employers are also required to provide job applicants a specific amount of time to provide additional evidence or explanation. In particular, New York City requires three days from receipt of the notice; Philadelphia requires ten days; and San Francisco requires seven days.

How will this Ordinance Be Enforced?

Enforcement under each ordinance is largely left to specific equal employment or human rights administrative agencies within each city. Each administrative agency is authorized to collect civil penalties for violations. The availability of a private right of action varies among the ordinances, however. For example, the Austin ordinance does not provide for a private right of action. San Francisco also does not provide for a private right of action, but the San Francisco Office of Labor Standards Enforcement may refer the matter to the city attorney for civil action. In contrast, the Philadelphia ordinance establishes an administrative exhaustion requirement before permitting a private right of action. New York City provides for a private right of action under the New York City Human Rights Law. Retaliation is generally prohibited under each ordinance as well.

Employer Outlook

Because of the current wave of ban the box ordinances is likely to continue, employers should continue to evaluate their pre-employment and hiring practices and make necessary adjustments. Specifically, affected employers should review their employment applications, advertisements, and postings to ensure that any questions regarding an applicant’s criminal history are legally compliant for each cities and municipalities. Affected employers should also make sure all hiring/recruiting managers are apprised of the new ordinance requirements through training and revision of policies. Employers should also be aware of the limitations on requesting and using criminal history information throughout the hiring process. Finally, employers operating in multiple jurisdictions should pay particular attention to the nuanced requirements of the various applicable ordinances, which at times may impose inconsistent or conflicting requirements.